Hab Clinton Assoc., LL v Marsh

[*1] Hab Clinton Assoc., LL v Marsh 2005 NY Slip Op 51381(U) [9 Misc 3d 1103(A)] Decided on August 23, 2005 Civil Court, New York County Milin, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on August 23, 2005
Civil Court, New York County

Hab Clinton Assoc., LL, Petitioner,

against

Edwina Marsh, Respondent.



050238/2005

Maria Milin, J.

This is a holdover proceeding predicated on grounds that respondent is in violation of her lease because she has allegedly created a nuisance at the premises. Respondent has appeared by counsel and moves to dismiss the proceeding. Petitioner opposes the motion.

Respondent moves to dismiss on various grounds. First, respondent argues that the predicate notices served in this proceeding are jurisdictionally defective.

In support of this argument respondent submits the following facts. The lease between the parties requires that in the event of a default by the tenant, the landlord must give [*2]

the tenant a ten-day notice to cure and that this notice must be personally delivered to the tenant or sent by regular and certified mail. The affidavit of the process server indicates that after reasonable attempts to personally serve the respondent with the Notice to Cure were unsuccessful petitioner resorted to conspicuous place service. A copy of the ten-day Notice to Cure was allegedly placed under respondent's entrance door and mailed to her by regular first-class mail and certified mail on October 4, 2004. The ten-day Notice to Cure instructs respondent that she is to cure the nuisance conditions described in the notice "within (10) [you must cure by October 13, 2004] days from the date of service upon you ..." Therefore, respondent concludes that the Notice to Cure is fatally defective since it provided respondent with only nine days to cure.

In addition, respondent urges that both the Notice to Cure, and the ten-day Notice of Termination (which was also served by conspicuous place service) are defective since pursuant to the holding of the Court of Appeals in ATM One, LLC v. Landaverde, 2 NY2d 472 (2004), petitioner was required to add five days to the notice period.

Petitioner argues in opposition that respondent was indeed provided ten days to cure, with the effective time period beginning October 4, 2004, and continuing through and including October 13, 2004. Next, petitioner posits that the holding in the Landaverde case is not applicable to the facts presented in this proceeding since actual service of the notices was accomplished when they were placed underneath the door of the premises. Petitioner further claims that there is no affidavit from respondent claiming that the notices were not left under her entrance door, and/or that she did not actually receive the notices.

Petitioner's arguments are unpersuasive.

First, petitioner's strained mathematical calculations to the contrary, respondent was provided with only nine days to cure. Second, since conspicuous place service cannot be considered complete until the required mailings are made, the holding in the Landaverde case does apply, and petitioner was therefore required to add five days to the notice periods set forth in both the Notice to Cure and the Notice of Termination. Therefore, the predicate notices are defective because they failed to provide respondent with lawfully adequate notice periods.

Based on the foregoing the motion to dismiss the petition is granted.

Dated:New York, New York________________

August 23, 2005J. H. C.